101 F.

3d 684

NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED

AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED
TO THE ATTENTION OF THE COURT IN A SUBSEQUENT
STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY
CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR
RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23.
UNITED STATES of America, Appellee,
v.
Alejandro MARTINEZ, also known as Alejandro MartinezGarcia;
Jose De Jesus Zapata-Herrera, also known as El Chino, also
known as Jose Mario Perez; Johnny Aybar; Jose Miguel
Rodriguez; Michael R. Williams; Margarita Hernandez;
Francisco Bolivar and Holguer Miguel Garay, also known as
Luis Alica Reina, Defendants,
Nelson Aybar and Felix Hernandez, Defendants-Appellants.
Nos. 95-1611, 95-1619.

United States Court of Appeals, Second Circuit.

May 21, 1996.

APPEARING FOR APPELLANT AYBAR: Justin Levine, New York,

NY.
APPEARING FOR APPELLANT HERNANDEZ: Raymond S. Sussman,
White Plains, NY. APPEARING FOR APPELLEE: Michael A. Rogoff,
Assistant United States Attorney for the Southern District of New York,
New York, NY.
S.D.N.Y.
AFFIRMED.
Before MESKILL, and CARDAMONE, and J. MINER, Circuit Judges.

This cause came on to be heard on the transcript of record and was argued by
counsel for appellant Aybar and for the government, and was submitted by
counsel for Hernandez.

Defendants-appellants Nelson Aybar and Felix Hernandez appeal from

judgments entered in the United States District Court for the Southern District
of New York (Griesa, J.) convicting Aybar and Hernandez, following a jury
trial, on one count of conspiracy to distribute and to possess with intent to
distribute five kilograms or more of cocaine, in violation of 21 U.S.C. 812,
841(a)(1), 841(b)(1)(A), and 846. The district court sentenced Aybar
principally to a 235-month term of imprisonment and Hernandez principally to
a 121-month term of imprisonment.

According to the government, from September of 1991 until their arrest on

August 14, 1992, Aybar and Hernandez participated in a cocaine-trafficking
organization that distributed numerous kilograms of cocaine. Defendant Jose de
Jesus Zapata-Herrera was the head of the organization and resided in Colombia,
South America. Defendant Alejandro Martinez was Zapata-Herrera's main
broker for the cocaine in New York. The government claimed that, from
Colombia, Zapata-Herrera would arrange for multi-kilogram shipments of
cocaine to be delivered in New York to Martinez, who in turn would distribute
the cocaine among Aybar, Hernandez, and others.

The government's proof at trial included: the testimony of four former

members of the organization, Marino Rodriguez, Bolivar Francisco, Jose
Rodriguez, and Michael Williams; over twenty recorded conversations obtained
from wiretaps placed on Martinez' home and cellular telephones; drug records
seized from Martinez' home, reflecting how various shipments of cocaine were
distributed among Aybar, Hernandez, and others; and cocaine, money,
narcotics paraphernalia, beepers, cellular telephones, address books,
photographs, and documents seized from the homes of various members of the
conspiracy.

On November 12, 1993, a jury found Aybar and Hernandez guilty. Following
their convictions, both Aybar and Hernandez moved, pursuant to Fed.R.Crim.P.
33, to set aside the verdict, claiming that they had received ineffective
assistance of trial counsel. At sentencing, on October 19, 1995, the district
court denied Aybar and Hernandez' motions as untimely and meritless.

On appeal, Aybar and Hernandez again argue that their trial attorneys were
constitutionally ineffective. In Strickland v. Washington, 466 U.S. 668 (1984),

the Supreme Court held that, in order for a defendant to prevail on an

ineffective assistance of counsel claim, the defendant must show: (1) that his
attorney's performance "fell below an objective standard of reasonableness," id.
at 688; and (2) that there was a "reasonable probability" that, but for his
attorney's error, the outcome of the trial would have been different, id. at 694.
We think that the claims of Aybar and Hernandez are without merit because the
appellants cannot show that their attorneys' performances "fell below an
objective standard of reasonableness."
7

Aybar argues, inter alia, that he received ineffective assistance because his
attorney failed to file a motion to suppress certain incriminating wiretap
evidence. In order for Aybar to be successful on this claim, he must show that
the suppression motion would have been meritorious if filed. See United States
v. Matos, 905 F.2d 30, 32 (2d Cir.1990). Aybar argues that a suppression
motion would have been successful because the government violated 18 U.S.C.
2518, which requires that wiretap recordings be sealed, by allowing Marino
Rodriguez to listen to the tapes during the course of the government's
investigation.

However, 18 U.S.C. 2517(2) authorizes a law enforcement officer to use "the

contents of any wire, oral, or electronic communication or evidence derived
therefrom ... to the extent such use is appropriate to the proper performance of
his official duties." We have held that the disclosure of intercepted
conversations to a witness for the purpose of making voice identification is an
appropriate use of intercepted wiretap communications. See United States v.
Ricco, 566 F.2d 433, 435 (2d Cir.1977), cert. denied, 436 U.S. 926 (1978).
Accordingly, because the wiretap evidence was properly used by the
government, any motion made to suppress the wiretap evidence would have
failed. For this reason, we do not think that the conduct of Aybar's attorney fell
below an "objective standard of reasonableness."

Hernandez claims, inter alia, that he received ineffective assistance because his
attorney failed to introduce documents that allegedly would have shown that
Hernandez' recorded conversations with Martinez related to cars and not drugs,
as the government contended at trial. However, the government at trial
conceded that Hernandez and Martinez were involved in a car business together
and that many of their tape-recorded conversations related to various cars that
they were buying and selling. Thus, the introduction of further evidence that
Hernandez was involved in a car business with Martinez would not have proven
anything that had not been conceded already by the government. Accordingly,
we do not think that the conduct of Hernandez' attorney fell below an "objective
standard of reasonableness."

10

Both Aybar and Hernandez claim that the district court erred by improperly
attributing to them quantities of cocaine for the purpose of determining relevant
conduct for sentencing. To determine a defendant's relevant conduct for
purposes of sentencing, a defendant will be held responsible not only for his
own conduct but also for "reasonably foreseeable acts undertaken in
furtherance of any jointly undertaken activity." United States v. Joyner, 924
F.2d 454, 458 (2d Cir.1991). The sentencing court need not find that the
defendant "had actual knowledge of the exact quantity of narcotics involved in
the conspiracy; it is sufficient if he could reasonably have foreseen the quantity
involved." United States v. Negron, 967 F.2d 68, 72 (2d Cir.1992).

11

Aybar claims that, at sentencing, he improperly was held accountable for the
conspiracy to import and distribute 250 kilograms of cocaine. However, we
think that the district court properly relied on the government's wiretap
evidence and Martinez' drug records in determining that a scheme to import and
distribute 250 kilograms of cocaine existed, and that Aybar was a coconspirator in the scheme. Thus, it was appropriate for the district court to
sentence Aybar for the amount of drugs involved in this scheme.

12

Hernandez claims that the district court improperly held him accountable for
over five kilograms of cocaine when determining his sentence. While
Hernandez concedes that the government presented sufficient proof that he was
accountable for four and one-half kilograms of cocaine, he claims that the one
and one-half kilograms of cocaine seized from a co-conspirator's apartment
were not "reasonably foreseeable" to him. We disagree. The government's
wiretap evidence not only demonstrates that the cocaine discovered in the coconspirator's apartment was foreseeable to Hernandez, but that Hernandez
actually knew that the cocaine was there. Accordingly, the district court
properly held Hernandez accountable for over five kilograms of cocaine.

13

We have considered Aybar and Hernandez' remaining contentions, and we find

them all to be without merit.